Supreme Court ruling could put local drug cases at risk

Roughly 30 chemists now in the three state labs analyzing tens of thousands of cases will be bouncing around the state to testify on their findings or the case could be tossed out.

Maureen Boyle

Thousands of drug cases could be dropped or delayed unless the state hires more chemists, who are now forced to split their time between the laboratory and witness stand thanks to a U.S. Supreme Court ruling.

“This is a public safety crisis,” Norfolk County District Attorney William Keating said.

The U.S. Supreme Court, in a 5-4 decision, ruled this summer that it wasn’t enough to use lab analysis paperwork as evidence detailing the weight and type of drug seized in a criminal case — the chemist has to testify, too.

That means the roughly 30 chemists now in the three state labs analyzing tens of thousands of cases will be bouncing around the state to testify on their findings — or the case could be tossed out.

And, the time it takes to examine drug evidence in the lab could take far longer than the average six months it does now.

“It is a very challenging problem,” Plymouth County District Attorney Timothy J. Cruz said. “There is going to be a longer turn-around.”

The high court decision in a Boston drug-dealing case affects about 30 states. The ruling says that using just laboratory analysis certificates as evidence violated a defendant’s right to confront witnesses — so the chemists have to testify.

It might make the prosecutors’ task “burdensome,” the high court found, but that’s not enough to relax the law.

Defense attorney Joseph Krowski said he’s been arguing that point for years.

“You can’t attack a piece of paper on the stand,” Krowski said. “We have the right to cross-examine the person doing the testing.”

Lawmakers are now scrambling to find legal ways to handle the situation and prosecutors are dealing with what could be a scheduling nightmare for cases.

At the request of the state attorney general and district attorneys association, Gov. Deval Patrick filed a bill with lawmakers to set up a procedure where lab certificates can be used if the defendants do not object.

Under the plan, prosecutors would give defendants notice when they plan to use the certificates as evidence. Defendants would then have the option to “demand” the analyst testify.

“Nobody wants people who are dealing drugs in a community to escape without accountability,” said Geline W. Williams, executive director of the Massachusetts District Attorneys Association. “That is just plain bad for the public.”

Keating, the Norfolk district attorney, said that is a good first step but doesn’t address the main problem: the state needs more chemists.

Even before the Supreme Court ruling, “the delays were six to eight months. There was a need to hire more chemists then,” Keating said.

In the meantime, the ruling is expected to hit district court cases the hardest. That’s where thousands of cases, ranging from drug possession to drug dealing, are handled.

In Plymouth County last year, there were 1,881 drug cases filed involving 3,419 charges — nearly all in the lower court.

There were 119 cases involving 320 charges that year filed in Superior Court where the most serious cases, such as drug trafficking, are tried.

In Norfolk County last year, there were 714 drug cases involving 1,555 charges.

There were 123 cases involving 346 charges in Superior Court that year.

In 2007, there were 649 cases filed involving 1,402 charges. Eighty-nine of the cases, involving 114 charges were filed in Superior court.

And thousands more are disposed of each year. In 2008 in Plymouth County, 2,183 drug cases involving 4,133 drug charges were disposed of. In Norfolk County, 491 cases were disposed of from a total of 823 charges.

Drug cases move fairly quickly through the courts, Cruz said, because the main witnesses are usually police officers who can be called at a moment’s notice.

Now, those cases will take longer to schedule.

“Drug cases for a long time have really been the filler cases where 90 percent of the witnesses are strictly police,” Cruz said. “You can fit it in.”

Krowski said keeping the courts moving quickly isn’t the issue.

“It is not about speeding the process up. It is whether the Constitution applies,” the defense attorney said.

He said he expects defense attorneys in drug cases to demand chemists come in for most cases in the state.

“We will have more leverage in most cases by holding the government to the task of presenting a live witness,” he said.

Krowski said attorneys will try to get first-offense cases dismissed to avoid higher penalties if the person is caught again with drugs.

They will also question the weight of the drugs because there are higher penalties when someone is caught with more drugs, he said.

“If someone has one heroin or one cocaine case, there is the possibility they can start to add up in the future,” Krowski said. “You have a duty to minimize, as a lawyer. If you have a question about the quality or the weight, it is your duty to raise it.”

Chemists are already heading to court in drug cases.

Earlier this month, a chemist took the stand in Brockton Superior Court in a cocaine dealing case involving a 19-year-old Brockton man.

The jury deliberated less than 10 minutes before finding the man guilty.

Maureen Boyle can be reached at mboyle@enterprisenews.com.

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